Lepore v. Breidenbach , 2015 Ohio 2929 ( 2015 )

[Cite as Lepore v. Breidenbach, 2015-Ohio-2929.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
SUZANNE V. LEPORE, : APPEAL NO. C-140310
TRIAL NO. DR-1102278
Plaintiff-Appellant, :
vs. : O P I N I O N.
CHARLES A. BREIDENBACH, :
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relation Division
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: July 22, 2015
Statman, Harris & Eyrich, LLC, Alan J. Statman and Thomas S. Sapinsley, for
Plaintiff-Appellant,
Phillips Law Firm, Inc., and Alfred Wm. Schneble, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Plaintiff-appellant Suzanne V. Lepore appeals the trial court’s
decision denying in part her motion to find defendant-appellee Charles A.
Breidenbach in contempt for failing to pay child support as provided for in a decree
for legal separation and a decree for shared parenting. We find merit in her
arguments, and we reverse the trial court’s judgment.
I. Facts and Procedure
{¶2} The record shows that the parties were married in 2000 and that they
had four children. They entered into a separation agreement and an agreement for
shared parenting in October 2011, after Breidenbach had moved out of the marital
home. The parties’ agreements were incorporated into a decree of legal separation
and a final decree of shared parenting, which the court journalized in January 2012.
During those proceedings, Lepore was represented by counsel. Breidenbach was not
represented, although he acknowledged to the court that he had voluntarily signed
the agreements.
{¶3} The agreements incorporated into the decrees created a two-tiered
child-support obligation. The first tier, which was calculated with a child-support
worksheet using Breidenbach’s base pay, was to be paid through the Child Support
Enforcement Agency (“CSEA”). The second tier involved child support based on the
bonuses and commissions Breidenbach received as part of his compensation.
{¶4} The relevant provisions of the decree of legal separation stated:
[I]n accordance with the child support worksheet attached
hereto, Defendant shall pay child support in the amount of $428.86
per month per child plus a 2% processing charge, through The Office
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OHIO FIRST DISTRICT COURT OF APPEALS
of Child Support of The Department of Jobs [sic] and Family Services
for the parties’ minor child. This order is effective on the 1st day of
September 2011 and is payable monthly in the total amount of
$1,749.74, including the processing charge.
The parties acknowledge that, due to the number of children
and their ages, it is not feasible or appropriate for Plaintiff to work
outside of the home except for the time she spends running SVL, Inc.
The parties acknowledge that Defendant just started a job that pays a
base salary of $52,988.00 plus commissions and that the child support
has been calculated solely upon his base salary. The parties agree that,
effective immediately, Defendant shall pay 100% of any commissions
and bonuses he receives [to] Plaintiff within 7 days of his receipt
thereof as additional child support. These amounts shall be paid
directly to Plaintiff by check, money order or some other means that
can be used to verify the payment.
The parties understand and acknowledge that these support
obligations are more than the guideline support reflected in the child
support worksheet attached hereto. However, the parties agree that
the guideline support is not sufficient to provide for the needs of the
children and is unjust and inappropriate. Therefore, the parties agree
that a deviation from guideline child support is in the best interest of
the children.
Defendant is under a continuing obligation to advise Plaintiff of
changes to his base salary. Defendant shall also provide to Plaintiff a
copy of his biweekly pay stubs and any other check he receives from
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his employer. Defendant shall provide the information to Plaintiff
within 3 days of the date on which he is paid.
{¶5} After the decrees were entered, the parties attempted to reconcile.
Breidenbach moved back into the marital home in August 2012. While they resided
together, the parties comingled their income and expenses. Their attempts at
reconciliation were unsuccessful, and Breidenbach moved out again in June 2013.
{¶6} On August 7, 2013, Lepore filed a motion for contempt. She asked the
trial court to find Breidenbach in contempt for failing to pay 100 percent of his
bonuses and commissions directly to her and for failing to provide his biweekly pay
stubs and any other checks he had received from his employer, as required by the
separation agreement incorporated into the decree.
{¶7} Subsequently, Breidenbach filed a Civ.R. 60(B) motion for relief from
judgment. He argued that (1) the actions taken by the parties to reconcile voided the
terms of the previous decrees, (2) Lepore had engaged in fraud and overreaching to
get him to sign the agreements, and (3) the decrees themselves were inherently
inequitable. The trial court overruled his motion.
{¶8} Lepore’s motion for contempt was heard by a magistrate. The
magistrate found that Breidenbach was in contempt for failing to provide to Lepore
pay stubs and copies of any other check he had received from his employer. The
magistrate also found that he was in contempt for failing to pay her his net bonus
and commission income that he had earned from February 1, 2012, to “mid-August
2012,” and from June 1, 2013, to August 9, 2013.
{¶9} The magistrate recommended that Breidenbach be sentenced to 30
days’ incarceration, but ordered that sentence stayed. The magistrate stated that to
purge himself of contempt, Breidenbach had to pay Lepore $14,171.75, which was the
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OHIO FIRST DISTRICT COURT OF APPEALS
total amount of commission and bonus income he had received minus a set-off for
funds Lepore owed to him, and to provide her with certain data. The magistrate also
ordered Breidenbach to provide Lepore with copies of his pay stubs and any other
checks he receives from his employer within three days of receiving them. Finally,
the court awarded Lepore attorney fees and costs associated with the motion for
contempt.
{¶10} Both parties objected to the magistrate’s decision. Breidenbach’s
objections included his contention that the magistrate’s decision “ignored the
mandates as required in the Ohio Revised Code for the calculation of child support,
and thus finding [him] in contempt for not paying said support is against the law and
public policy.”
{¶11} In its entry ruling on the objections, the trial court listed the parties’
objections. But it stated that “[i]n considering these matters, the Court has
determined that a more fundamental issue guides the consideration of the decision
of the magistrate[.]” It found that the order in the decree requiring Breidenbach to
pay child support directly to Lepore was not valid, because it did not comport with
the requirement of R.C. 3121.44 that the court must require any child-support
payment to be paid to “the office of support in the department of job and family
services.” The court then cited case law for the proposition that a party cannot be
found in contempt for violating an invalid order. It concluded that “[g]iven the
Court’s determination that it was without authority to order Husband to pay child
support to Wife directly, the Court vacates the magistrate’s finding of contempt on
that basis.”
{¶12} The trial court found the magistrate was correct in finding that
Breidenbach was in contempt for failing to provide Lepore with copies of his pay
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OHIO FIRST DISTRICT COURT OF APPEALS
stubs and other checks from his employer. It found him in contempt, and sentenced
him to serve ten days incarceration, but stated he could purge himself of contempt by
providing those documents to Lepore as ordered in the decrees. This appeal
followed.
II. A Voidable Order
{¶13} In her first assignment of error, Lepore contends that the trial court
erred in finding that the child-support orders were invalid, because the decrees did
not require them to be paid through CSEA. She argues that a child-support order
requiring a direct payment of child support that is issued by a court that has both
personal and subject-matter jurisdiction is a valid order. This assignment of error is
well taken.
{¶14} R.C. 3121.44 and 3121.45 set forth clear and mandatory language
requiring the payment of child support to CSEA and obligating the court to consider
any direct payment as a gift. In re Barone, 11th Dist. Geauga No. 2004-G-2575,
2005-Ohio-4479, ¶ 21-22. Some courts have stated that the trial court has no
authority to approve payments that are not paid to CSEA. See Bowley v. Bowley,
12th Dist. Warren No. CA97-12-126, 1998 Ohio App. LEXIS 2280, *3-4 (May 26,
1998); Starr v. Starr, 109 Ohio App.3d 116, 121, 671 N.E.2d 1097 (8th Dist.1996).
{¶15} There is no question that the trial court’s order in the decree of legal
separation and the decree of shared parenting, allowing the payment of child support
directly to Lepore rather than to CSEA, was error. But no direct appeal was filed
from those decrees. Further, the trial court overruled Breidenbach’s Civ.R. 60(B)
motion for relief from those judgments, and Breidenbach did not appeal that
decision.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The question becomes whether the error rendered those portions of
the decrees void or voidable. A judgment is generally void only when the court
rendering the judgment lacks subject-matter jurisdiction or jurisdiction over the
parties. Miller v. Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845, 972 N.E.2d
568, ¶ 12. A void judgment is a nullity that may be collaterally attacked at any time.
Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 46; Boehm,
Kurtz & Lowry v. Evans Landscaping, Inc., 1st Dist. Hamilton No. C-140597, 2015-
Ohio-2692, ¶ 9.
{¶17} A voidable judgment, on the other hand, is rendered by a court that
has both jurisdiction and authority to act, but the court’s judgment is invalid
irregular, or erroneous. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, ¶ 6; Miller at ¶ 12. A voidable judgment may be attacked on direct
appeal or in a timely motion for relief from judgment under Civ.R. 60(B). Until a
court declares a voidable judgment invalid, it has all the ordinary consequences of
any other judgment. Tari v. State, 117 Ohio St. 481, 493-494, 159 N.E. 594 (1927);
Leman v. Fryman, 1st Dist. Hamilton No. C-010056, 2002-Ohio-191, ¶ 12.
{¶18} The jurisdiction of the domestic relations court is statutory. Davis v.
Cincinnati Enquirer, 164 Ohio App.3d 36, 2005-Ohio-5719, 840 N.E.2d 1150, ¶ 11
(1st Dist.). R.C. 3105.011 states that “[t]he court of common pleas including divisions
of courts of domestic relations, has full equitable powers and jurisdiction appropriate
to the determination of all domestic relations matters.” Thus, the trial court in this
case had jurisdiction to issue the decree of legal separation and the decree of shared
parenting. Additionally, the parties do not dispute that the trial court had personal
jurisdiction over them. See R.C. 3105.03; Rijo v. Rijo, 1st Dist. Hamilton No. C-
930704, 1995 Ohio App. LEXIS 299, *14-18 (Jan. 31, 1995). Because the court had
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OHIO FIRST DISTRICT COURT OF APPEALS
both subject-matter jurisdiction to issue the decrees and personal jurisdiction over
the parties, the court’s failure to order the child support to be paid to CSEA does not
render the judgments void.
{¶19} Because the judgments were voidable, they could be attacked only on
direct appeal. Both the decree of legal separation and the decree of shared parenting
were final, appealable orders. See R.C. 2505.02(B); Civ.R. 75(F); Wilson v. Wilson,
116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 15. Consequently, the error
should have been raised on direct appeal. Though Breidenbach did file a Civ.R.
60(B) motion for relief from judgment, he did not raise the issue of the court’s failure
to order the child support to be paid through CSEA, and he did not appeal the court’s
denial of the motion. Consequently, the validity of the child-support orders could
not be collaterally attacked in a contempt proceeding. See Ahmed v. Shafik Ahmad,
2d Dist. Montgomery No. 23740, 2010-Ohio-5635, ¶ 23.
{¶20} While the domestic relations court could exercise its continuing
jurisdiction to order that future child-support payments be made through CSEA, it
could not rescind the order as to the child-support arrearages already due. See
Broadnax v. Bowling, 1st Dist. Hamilton No. C-030502, 2004-Ohio-1114, ¶ 14.
Consequently, we sustain Lepore’s first assignment of error.
III. Order is Enforceable by Contempt
{¶21} In her third assignment of error, Lepore contends that the trial court
erred in finding that the child-support orders were unenforceable in contempt. She
argues that because the child-support orders were not void, but merely voidable, they
could be enforced in contempt. This assignment of error is well taken.
{¶22} This court has said that a party may not be found in contempt of an
invalid order. See Cincinnati Met. Hous. Auth. v. Cincinnati Dist. Council, 22 Ohio
8OHIO FIRST DISTRICT COURT OF APPEALS
App.2d 39, 44, 257 N.E.2d 410 (1st Dist.1969). Accord Jurek v. Jurek, 8th Dist.
Cuyahoga No. 52846, 1987 Ohio App. LEXIS 7809, *3-4 (July 9, 1987);
Paszczykowski v. Paszczykowski, 6th Dist. Lucas No. L-80-301, 1981 Ohio App.
LEXIS 10359, *3-4 (May 29, 1981). But this rule is inapplicable to the present case
because the orders sought to be enforced were still valid. The error rendered them
voidable, but they were never reversed, vacated, or set aside.
{¶23} Obedience to judicial orders is an important public policy. Parties
must obey an order issued by a court of competent jurisdiction until it is vacated or
reversed through proper procedure. Walker v. Birmingham, 388 U.S. 307, 313-314,
87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); United States v. United Mine Workers, 330
U.S. 258, 293-294, 67 S.Ct. 677, 91 L.Ed.2d 884 (1947); Westlake v. Patrick, 8th
Dist. Cuyahoga No. 88198, 2007-Ohio-1307, ¶ 6. “If a party can make himself a
judge of the validity of orders which have been issued, and by his own disobedience
set them aside, then are the courts impotent, and what the Constitution now fittingly
calls the ‘judicial power of the United States’ would be a mere mockery.” United
Mine Workers at 290, quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418,
450, 31 S.Ct. 492, 55 L.Ed. 797 (1911).
{¶24} Consequently, a violation of a court order is punishable by contempt
even if a court later determines that the order is invalid. Walker at 314; United Mine
Workers at 294; Westlake at ¶ 7. Parties faced with an invalid order must have it
modified or vacated. They cannot simply ignore it. Natl. Equity Title Agency v.
Rivera, 147 Ohio App.3d 246, 2001-Ohio-7095, 770 N.E.2d 76, ¶ 2.
{¶25} In this case, the child-support order allowing for payment directly to
Lepore was not declared invalid until the trial court’s May 5, 2014 order. Before that
date, Breidenbach was required to pay his bonuses and commissions as required by
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OHIO FIRST DISTRICT COURT OF APPEALS
the separation agreement incorporated into the decrees, and could be found in
contempt for failing to do so. Consequently, we hold that the trial court erred in
holding that he could not be found in contempt for violating the child-support order.
We sustain Lepore’s third assignment of error.
IV. Res Judicata
{¶26} In her second assignment of error, Lepore contends that the trial
court erred in addressing the issue of whether the child-support orders were invalid.
She contends that the question of the validity of the orders is res judicata because
Breidenbach did not appeal the decree of legal separation or the trial court’s order
overruling his Civ.R. 60(B) motion.
{¶27} As a general rule, motions regarding child support invoke the court’s
continuing jurisdiction and are not barred by res judicata. Flege v. Flege, 12th Dist.
Butler No. CA2003-05-111, 2004-Ohio-1929, ¶ 32; In re Kelley, 2d Dist. Champaign
No. 2000-CA-14, 2000 Ohio App. LEXIS 5833 *8-9 (Dec. 15, 2000). But, to the
extent that a party seeks to revisit an issue regarding a support arrearage that was
previously considered and decided by the court, the doctrine may be applied. Klein
v. Botelho, 2d Dist. Montgomery No. 24393, 2011-Ohio-4165, ¶ 86; Kelley at *8-9.
{¶28} Consequently, issues regarding the validity of the child-support
orders in the decrees were res judicata and cannot be collaterally attacked. The
failure to pay past child support can be enforced by contempt. But due to the
continuing jurisdiction of the domestic relations court over child support,
Breidenbach can still seek to have the amount of future child support modified. With
that caveat, we sustain Lepore’s second assignment of error.
{¶29} Finally, in her fourth assignment of error, Lepore contends that the
trial court erred in finding that it was without authority to adopt the parties’
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OHIO FIRST DISTRICT COURT OF APPEALS
agreement concerning the payment of child support. We agree. The decree of legal
separation and the shared-parenting decree were both final, appealable orders. Any
alleged errors contained in those decrees should have been raised in a direct appeal
from the decrees themselves. They cannot be raised now in an appeal from the
court’s ruling on Lepore’s motion for contempt. See Marshall v. Marshall, 4th Dist.
Lawrence No. 06CA9, 2007-Ohio-3041, ¶ 20-25. Consequently, we sustain Lepore’s
fourth assignment of error.
V. Summary
{¶30} In sum, we reverse that part of the trial court’s decision vacating the
magistrate’s finding of contempt on the basis that the court was without authority to
order Breidenbach to pay support to Lepore directly and not through CSEA. Because
the court determined that the order was invalid, it found all of the other objections to
the magistrate’s report to be moot. Consequently, we remand the cause to the trial
court to determine the validity of those objections and to determine whether to
adopt, reject, or modify the magistrate’s decision on that basis. See Civ.R. 53(D)(3)
and (4); Chan v. Tasr, 1st Dist. Hamilton No. C-070275, 2008-Ohio-1439, ¶ 6-11.
We affirm that part of the trial court’s decision finding Breidenbach in contempt for
failing to provide his pay stubs and copies of any other checks as provided for in the
decrees.
Judgment affirmed in part, reversed in part, and cause remanded.
H ENDON , P.J., and D E W INE , J., concur.
Please note:
The court has recorded its own entry this date.
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